Equal Speech Protection

*Climenko Fellow and Lecturer on Law, Harvard Law School. I’m grateful to Jack Balkin, Ash Bhagwat, Kiel Brennan-Marquez, Evelyn Douek, Richard Fallon, Noah Feldman, Michael Klarman, Martha Minow, Alex Tsesis, Laura Weinrib, and participants of the Freedom of Expression Scholars Conference and the Information Society Project Workshop at Yale Law School for valuable comments and insights, to Francisco Collantes for excellent research, and to the editors of the Virginia Law Review for superb editing.Show More

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Introduction

The First Amendment’s hierarchy of protection for different types of speech is a myth. The doctrine has long purported to place political speech at the highest and most protected position in this hierarchy, followed by commercial speech and speech on purely private matters, with “low-value” speech like obscenity and fighting words on its bottom rung.¹ 1.I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)).Show More This basic hierarchy, however, is a doctrinal fiction. As a theory, it does not accurately describe how the First Amendment protects speech; as a doctrine, it does not guide the Supreme Court’s application of free speech law. The true but hidden framework of modern free speech law is one of equal speech protection. Through a holistic reevaluation of the Supreme Court’s free speech jurisprudence, this Article reveals that the First Amendment grants different types of speech comparable levels of protection and that this level of protection is altogether quite moderate—including for political speech. The most salient and startling consequence of exposing the hierarchy as a myth, therefore, is to uncover the constitutionality of restricting dangerous political speech to safeguard important public interests—namely, the protection of democratic governance.

The widely accepted view that political speech garners an exceptionally high level of constitutional protection is flawed in two ways. First, political speech does not enjoy an especially robust level of protection from state interference. The vast majority of political speech is routinely subject to significant government regulation or enjoys no First Amendment protection at all—this includes political speech on public and most private property, election speech, expressive political conduct, political speech crimes, and the speech of millions of government employees, students, and prisoners on matters of public importance. Second, the First Amendment does not protect political speech to a greater degree than it does non-political speech like cultural, commercial, or “low-value” speech. Rather, all speech receives essentially equal protection, notwithstanding judicial platitudes to the contrary.

This equal level of protection that all speech receives is best described as “moderate.” It permits, in effect, courts to moderate speech rights to preserve democratic interests. From a doctrinal standpoint, moderate protection looks a lot like intermediate scrutiny applied to all speech. But “intermediate” does not quite capture what the Supreme Court is doing when it extends moderate protection to speech. The Court is not simply charting a middle road between strict scrutiny and rational basis review, nor is it conducting a pure balancing inquiry or employing proportionality review to speech regulations. Instead, it is applying a unique, substantive standard that permits reasonable limits on speech that are necessary for democracy to function. Under this substantive standard, the Court largely defers to the government on whether a regulation is reasonable and focuses, implicitly, on whether it is necessary to protect democratic governance. This inquiry takes two forms: it can focus on safeguarding effective governance or it can focus on protecting democratic participation. The first requires subordinating speech rights to public order and safety; the latter requires doing so to ensure a healthy and informed public discourse. The result is a doctrine that equally permits regulations on any type of speech for these purposes, in direct contradiction to the hierarchical model of speech protection nominally embraced by the Court throughout its First Amendment caselaw.

The hierarchy of speech protection is no more than a doctrinal myth. The concept of myth is integral to understanding the hierarchy model. Myths are widely held beliefs that are, at once, invented traditions and fictitious narratives.² 2.See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine).Show More The hierarchy of speech protection embodies both elements of myth: it was invented out of whole cloth late in the development of free speech jurisprudence and has since persisted as a false narrative about how the First Amendment protects speech. Like most myths, the hierarchy is real and not real; it is pretend in that it does not control the outcome of cases, but it is powerful in that it continues to propagate widely held, but mistaken, assumptions about free speech law.³ 3.See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”).Show More

This acoustic separation between myth and law has reached a critical juncture. The digital age has transformed large swaths of human behavior into speech, bringing more and more activity within the First Amendment’s protective sphere and shading distinctions between types of speech. At the same time, the quantity of social and political speech that poses serious risks to democracy, the economy, and a just society has exploded. These developments demand regulations on speech, and yet the hierarchy of speech protection claims to immunize just such speech from regulation. Exposing the hierarchy as a doctrinal myth that does not reflect the law or theory of free speech protection thus illuminates the constitutional paths forward for regulating speech that risks serious social, political, and commercial harms.

Unmasking this myth has particular ramifications for the regulation of political speech. For decades the Supreme Court has perpetuated the narrative that there is a gradation of speech protection and that political speech receives the utmost protection from state interference. But its rhetoric does not match its holdings. A close examination of the protection afforded to political speech, both in the absolute and relative to other types of speech, shows that this supposed cornerstone of First Amendment law is more smoke and mirror than substantive rule. Indeed, the ruse that political speech receives near-absolute protection is perhaps the greatest misdirection accomplished by the hierarchy myth. In reality, political speech receives a moderate level of judicial protection, equal to that received by all other types of speech.

This tradition of extending equal and moderate protection to all speech works well by allowing the Court to moderate free speech rights in the interest of protecting democratic governance. But its potential is under-realized and increasingly at risk because it remains hidden behind the myth of the hierarchy of speech protection. By dismantling the myth, scholars, legislators, and judges alike can begin to reconceptualize the limits, and the possibilities, of speech regulations—including and especially political speech regulations. The advantages of doing so are manifold: it would put on the table some presumed off-the-wall restrictions on false and malicious political speech,⁴ 4.424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A.Show More and it would serve to democratize speech protection by encouraging legislatures to claim a greater share of the governing responsibility for protecting free speech.

This Article lays bare the hierarchy myth through a comprehensive retelling of the Supreme Court’s free speech jurisprudence. It explains why the hierarchy was invented, why it did not take hold doctrinally, and why it has nonetheless persisted rhetorically. In brief, the Court invented the hierarchy in two steps over a pair of cases in 1976: Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.⁵ 5.The reasons undergirding the hierarchy’s invention are discussed infra Section I.A.Show More First, in Buckley, the Court shifted the role of political speech as core to the First Amendment to a new position as the highest value of the Amendment. Then, in Virginia Pharmacy, the Court established a counterposing point on this newly conceived spectrum of speech by extending a supposedly lower level of protection to commercial speech. What appeared in these cases as small rhetorical steps actually represented a massive doctrinal leap.

The reason for this move inheres in the subject matter of the two cases in which it appears. Buckley and Virginia Pharmacy extended First Amendment protection to campaign financing and to commercial speech, respectively, and represented a tipping point in the post-New Deal explosion of First Amendment coverage. Prior to these cases, the Court did not purport to extend different levels of protection to different types of protected speech. But the Court had spent the last forty years increasingly expanding equal First Amendment protection to speech beyond core political speech—both by deepening coverage to semi-political speech and widening coverage to other types of speech—so that by 1976 the doctrine was sinking under its own weight and deeply in need of an organizing framework. It was in this novel context that the Court wholesale invented a hierarchy of speech protection, ordered according to the speech’s First Amendment value, out of what had been a diverse pool of equally protected speech representing various First Amendment values.⁶ 6.See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech).Show More

Lacking historical basis and in tension with other foundational principles of free speech law, the hierarchy failed to take root and guide the doctrine. Since its invention, the Supreme Court has continued to extend a quite equal level of protection to all covered speech. This equalization of speech protection results from two overriding trends: first, the Court has continued to grant political speech mostly moderate, not absolute, protection, permitting ample government regulation to facilitate the safe exchange of political ideas. In recent decades, the Court has reliably reaffirmed, or in some cases even lessened, this moderate level of protection for political speech, contrary to prevailing criticisms.⁷ 7.A full explanation of these two trends follows infra Sections I.B and I.C.Show More Second, the Court has consistently elevated protection for non-political speech to the same level as protection for political speech immediately or soon after recognizing that speech as covered by the First Amendment.⁸ 8.As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning.Show More

These two trends—maintaining moderate protection for political speech and extending the same level of protection to non-political speech—are themselves the inevitable consequence of applying the patchwork of core doctrines that comprise First Amendment law. These doctrines consist of a series of safety valves that funnel most political speech restrictions to regulation-accommodating corners of the jurisprudential landscape, as well as a series of neutral principles that resist drawing distinctions between types of speech.⁹ 9.See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015).Show More Together, these doctrines exert simultaneous pressure to ratchet down protection for political speech and ratchet up protection for non-political speech to the same level, all but ensuring that a hierarchy of speech protection could never fully develop.

Scholars have previously pinpointed the 1970s as the moment in which free speech doctrine became distorted in a number of significant ways. For example, scholars have identified how the free speech cases of that decade transformed the doctrine into one that vindicates corporate speech rights, undermines economic regulations, and subordinates the interests of citizens.¹⁰ 10.See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015).Show More This Article identifies another doctrinal innovation that occurred in this period: the Court’s invention of a hierarchy of speech protection and the ultimate failure of this new framework to guide free speech law. This Article thus exposes the fallacy in the doctrinal truism that political speech garners especially high protection, both in the absolute and relative to other types of speech.

In so doing, this Article resituates the current scholarship on the Court’s recent appetite for overturning commercial regulations under the First Amendment—a trend commonly termed the “Lochnerization” of the First Amendment. The origins and consequences of this trend have been widely discussed in recent years, almost entirely through a critical lens.¹¹ 11.See infra Subsection I.C.1.Show More This Article offers a novel understanding of how Lochnerization actually fits quite neatly, and in some ways beneficially, within the far larger trend of maintaining equal speech protection amongst varying types of speech. Where the Lochnerization sub-genre of First Amendment critique has focused narrowly on the doctrinal developments (or distortions) of commercial speech law, this Article makes clear that First Amendment Lochnerization is actually one piece of a larger doctrinal framework that blurs distinctions between types of speech and renders restrictions on all speech subject to moderate judicial protection. Specifically, Lochnerization is one speech protection equalization tool among many that functions as a means of ratcheting up protection for commercial speech to the same level of protection enjoyed by all other types of speech.¹² 12.See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014).Show More

Finally, unlike the overwhelming majority of recent literature on the trajectory of First Amendment doctrine,¹³ 13.See infra Section II.B.Show More the doctrinal manipulation this Article identifies has the potential to be normatively valuable. Recognizing that the hierarchy of speech protection and its attendant truism that political speech garners near-absolute protection are doctrinal myths clarifies the constitutionality of speech regulations aimed at protecting a safe and healthy political discourse. It also excavates the robust, but hidden, tradition of moderate and equal speech protection, which this Article argues serves as a unifying “social democratic theory” of free speech law.¹⁴ 14.See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment).Show More

But it is important from the beginning to sharpen this Article’s assertion that the hierarchy of speech protection is a myth. The myth I describe is a doctrinal myth—it is a legal principle that operates rhetorically rather than analytically, meaning it has little descriptive value for explaining the landscape of speech protection and little influence on how the Supreme Court decides free speech cases. This is not to say that the myth does not do any work. Most myths persist precisely because they have social, political, and psychological power. The myth of the hierarchy of speech protection is no different. It has bolstered the Court’s power and reputation as a guardian of speech rights and fostered a deeply ingrained legal and popular culture of speech tolerance that shapes law and policy decisions in legislatures and boardrooms every day.¹⁵ 15.First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text.Show More The myth serves the Court and free speech advocates and is also embraced by progressive scholars attempting in good faith to stem the constitutional inoculation of commercial activity from regulation. As this Article shows, however, the hierarchy myth is self-defeating and precisely the wrong doctrinal framework to accomplish progressive constitutional ends.

This Article also does not suggest that all speech regulations are equally permissible. Viewpoint- and content-based regulations, for example, are roundly prohibited. But such laws are equally prohibited regardless of the underlying type of speech at issue. These rules are therefore orthogonal to this Article’s central observation that all speech—political and non-political alike—receives equal protection from regulation. While there are only a few ways government may not regulate any type of speech, there are many ways it can regulate all types of speech. In declaring the hierarchy of speech protection a myth, this Article is chiefly concerned with showing that, as a holistic framework for understanding speech protection under the First Amendment, the hierarchy is an invented tradition disguising a reality of routine government supervision of speech boundaries.

Part I provides a descriptive account of the invention of the hierarchy myth and its lack of substantive force in shaping the doctrine since its creation. Section I.A briefly chronicles the post-New Deal trajectory of First Amendment expansionism from the 1930s through the mid-1970s and shows the absence of gradations in the level of protection afforded to covered speech in this period.¹⁶ 16.See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018).Show More The remainder of Part I then details how the newly invented tradition of a hierarchy of speech protection never amounted to anything more than a doctrinal truism. It documents how all types of speech are treated at essentially an equal, moderate level of protection. First, Section I.B catalogues the numerous ways the doctrine regularly, and uncontroversially, permits restrictions on political speech that are necessary for democratic government to function. It illuminates that most political speech is actually highly regulable under this standard, directly refuting a core tenet of the hierarchy framework that political speech garners strict constitutional protection. Section I.C then shows how the hierarchy of speech protection is also false for purporting to provide sequentially lesser protection to non-political speech. It explains that most non-political speech garners the same level of protection as political speech under various speech-specific doctrines and generally applicable rules of free speech law that have the effect of ratcheting up protection for non-political speech above what the rhetoric of the hierarchy otherwise suggests. Finally, Section I.D offers possible explanations for why the hierarchy myth has persisted and what consequences it has had on speech protection.

Part II takes up the normative question of whether an equal speech protection doctrine is desirable. It posits that equalizing speech protection—and equalizing it at a level that permits significant though specific legislative control over speech—is ultimately beneficial for maintaining a healthy speech environment and thus a healthy democracy. An equal speech framework is superior to any purported hierarchy of speech model for essentially two reasons, discussed in Sections II.A and II.B respectively. First, there is little practical or constitutional difference between political and non-political speech, making any attempt to distinguish speech by type a doomed and unwise task. Second, acknowledging that political speech is, and should be, afforded a moderate level of protection will foster a more democratic, egalitarian, and resilient First Amendment. It would invite legal reforms aimed at safeguarding the stability and vitality of our public discourse, including reforms addressing the proliferation of disinformation and toxic speech.

Recent scholarship has gone far to document the undemocratic and inegalitarian effects of current First Amendment doctrine¹⁷ 17.Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B.Show More but has struggled to identify a constitutionally compelling alternative.footnote_id_19_18 This Article does just that by focusing on reinterpreting the doctrine, as opposed to reinventing it. Properly understood, our current free speech doctrine is one of equal speech protection; and properly applied, this doctrine has enormous potential to produce egalitarian outcomes in which the vast majority of average citizens’ public discourse and democratic participation is affirmatively protected by legislatures from interference and manipulation. Thus, while doctrinal recitations by courts and commentators have long described a hierarchy of greater and lesser protected speech under the First Amendment, I show, by exposing its historical invention and its negligible impact on actual judicial decisions, how the hierarchical First Amendment is a sham. Instead, in origin, purpose, and application, the First Amendment prescribes equal treatment of varied kinds of speech, and making this clear can sharpen and improve advocacy, decisions, and responses to calls for reform.

1. Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2358 (2020) (Breyer, J., concurring in part and dissenting in part) (“This Court’s cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue.”); Rucho v. Common Cause, 139 S. Ct. 2484, 2514 (2019) (Kagan, J., dissenting) (“[The First] Amendment gives its greatest protection to political beliefs, speech, and association.”); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1955 (2018) (placing criticism of government officials “high in the hierarchy of First Amendment values”); Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“‘[N]ot all speech is of equal First Amendment importance,’ however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.”) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)); Holder v. Humanitarian L. Project, 561 U.S. 1, 42 (2010) (Breyer, J., dissenting) (“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary.” (emphasis omitted)); R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (“Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly ‘unprotected,’ it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech.” (emphasis omitted)); Connick v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values . . . .”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976) (holding that the differences between commercial speech and “other varieties” of speech mean “a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam) (“The First Amendment affords the broadest protection to such political expression . . . .”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971) (“[The First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). ↑
2. I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)). ↑
3. See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine). ↑
4. See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”). ↑
5. 424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A. ↑
6. The reasons undergirding the hierarchy’s invention are discussed infra Section I.A. ↑
7. See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech). ↑
8. A full explanation of these two trends follows infra Sections I.B and I.C. ↑
9. As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning. ↑
10. See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015). ↑
11. See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015). ↑
12. See infra Subsection I.C.1. ↑
13. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014). ↑
14. See infra Section II.B. ↑
15. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment). ↑
16. First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text. ↑
17. See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018). ↑

18. Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B. ↑